Psystar says its Mac OS X copies are legal by nature

Mac clone seller Psystar now claims the legally purchased nature of its Mac OS X copies clears it to load the software on its unofficial Open Computer and OpenPro systems.

Florida-based Psystar makes its argument in a 17-page response to Apple filed in a San Francisco court last week,Â*again accusingÂ*Apple of violating copyright law by requiring Mac OS X run only on Apple hardware. Â*This is Psystar's second line of defense after its claims regardingÂ*anti-trust violationsÂ*were thrown out of court for reportedly being self-defeating.

Instead, Psystar now claims it buys legitimate copies of the Mac OS from retailers and even directly from Apple itself, and under theÂ*doctrine of first saleÂ*doesn't need Apple's permission to resell them. By taking action against Psystar, Apple is effectively trying to override accepted sales practices.

"Apple attempts to usurp [the Copyright Act] by telling Psystar and its customers that Apple--and Apple alone--will say whether, how or by whom its software is...distributed or used," Psystar's attorneys write. "Once a copyright owner consents to the sale of particular copies of a work, the owner may not thereafter exercise distribution rights with respect to those copies."

Psystar still maintains that Apple's code within Mac OS X to verify the presence of Apple hardware, which forces a kernel panic or infinite loop if the test fails, "does not constitute a technological copyright protection measure" or "effectively control access to a copyrighted work."Â* Apple has accused Psystar of patching a part of the Mac OS X code to enable it to run on third-party hardware.

Apple, for its part, stands by its original claim that the Mac OS X licensing agreement clearly forbids installation on any non-Apple hardware.

Psystar has responded and continues to respond in turn by asserting that Apple is guilty of "unfair conduct" that "threatens or harms competition."Â* It wants Apple's copyrights to be declared unenforceable.

AppleÂ*suedÂ*Psystar in July, and the clone builderÂ*countersuedÂ*a month later.Â* The latest, amended complaint was filed after Judge William Alsup allowed Psystar toÂ*modify its argumentÂ*following its initial anti-trust allegations.

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Mac clone seller Psystar now claims the legally purchased nature of its Mac OS X copies clears it to load the software on its unofficial Open Computer and OpenPro systems.

Florida-based Psystar makes its argument in a 17-page response to Apple filed in a San Francisco court last week,*again accusing*Apple of violating copyright law by requiring Mac OS X run only on Apple hardware. *This is Psystar's second line of defense after its claims regarding*anti-trust violations*were thrown out of court for reportedly being self-defeating.

Instead, Psystar now claims it buys legitimate copies of the Mac OS from retailers and even directly from Apple itself, and under the*doctrine of first sale*doesn't need Apple's permission to resell them. By taking action against Psystar, Apple is effectively trying to override accepted sales practices.

"Apple attempts to usurp [the Copyright Act] by telling Psystar and its customers that Apple--and Apple alone--will say whether, how or by whom its software is...distributed or used," Psystar's attorneys write. "Once a copyright owner consents to the sale of particular copies of a work, the owner may not thereafter exercise distribution rights with respect to those copies."

Psystar still maintains that Apple's code within Mac OS X to verify the presence of Apple hardware, which forces a kernel panic or infinite loop if the test fails, "does not constitute a technological copyright protection measure" or "effectively control access to a copyrighted work."* Apple has accused Psystar of patching a part of the Mac OS X code to enable it to run on third-party hardware.

Apple, for its part, stands by its original claim that the Mac OS X licensing agreement clearly forbids installation on any non-Apple hardware.

Psystar has responded and continues to respond in turn by asserting that Apple is guilty of "unfair conduct" that "threatens or harms competition."* It wants Apple's copyrights to be declared unenforceable.

Apple*sued*Psystar in July, and the clone builder*countersued*a month later.* The latest, amended complaint was filed after Judge William Alsup allowed Psystar to*modify its argument*following its initial anti-trust allegations.

I actually agree with the First Sale Doctrine argument by Psystar. However, the First Sale doctrine doesn't extent to modifying the software for anything other then personal use.

Quote:

Originally Posted by AppleInsider

Mac clone seller Psystar now claims the legally purchased nature of its Mac OS X copies clears it to load the software on its unofficial Open Computer and OpenPro systems.

Florida-based Psystar makes its argument in a 17-page response to Apple filed in a San Francisco court last week,*again accusing*Apple of violating copyright law by requiring Mac OS X run only on Apple hardware. *This is Psystar's second line of defense after its claims regarding*anti-trust violations*were thrown out of court for reportedly being self-defeating.

Instead, Psystar now claims it buys legitimate copies of the Mac OS from retailers and even directly from Apple itself, and under the*doctrine of first sale*doesn't need Apple's permission to resell them. By taking action against Psystar, Apple is effectively trying to override accepted sales practices.

"Apple attempts to usurp [the Copyright Act] by telling Psystar and its customers that Apple--and Apple alone--will say whether, how or by whom its software is...distributed or used," Psystar's attorneys write. "Once a copyright owner consents to the sale of particular copies of a work, the owner may not thereafter exercise distribution rights with respect to those copies."

Psystar still maintains that Apple's code within Mac OS X to verify the presence of Apple hardware, which forces a kernel panic or infinite loop if the test fails, "does not constitute a technological copyright protection measure" or "effectively control access to a copyrighted work."* Apple has accused Psystar of patching a part of the Mac OS X code to enable it to run on third-party hardware.

Apple, for its part, stands by its original claim that the Mac OS X licensing agreement clearly forbids installation on any non-Apple hardware.

Psystar has responded and continues to respond in turn by asserting that Apple is guilty of "unfair conduct" that "threatens or harms competition."* It wants Apple's copyrights to be declared unenforceable.

Apple*sued*Psystar in July, and the clone builder*countersued*a month later.* The latest, amended complaint was filed after Judge William Alsup allowed Psystar to*modify its argument*following its initial anti-trust allegations.

I still want to know who is paying Psystar's bills. Computer builder's such as Dell want Psystar to win. OS competitors such as MS, don't want Psystar to win... OS X would then be sold on Dells etc, making OS X more ubiquitous.

Who would buy one of these Mac clones anyway? You are just asking for trouble. You'll never be able to update with patches (well, you can try) and who knows what third party software issues will come up. Stay away, far away...

Who would buy one of these Mac clones anyway? You are just asking for trouble. You'll never be able to update with patches (well, you can try) and who knows what third party software issues will come up. Stay away, far away...

You can update. And there are no 3rd party software issues either. Since apple runs on standard PC parts now you can buy hardware that apple supports natively. You can build 100% fully functionally hackintosh's quite easily.

I actually agree with the First Sale Doctrine argument by Psystar. However, the First Sale doctrine doesn't extent to modifying the software for anything other then personal use.

I guess two wrongs wouldn't make a right, but if Psystar argument is correct, then they shouldn't need to modify the code. This is the reason they are in court then, eh?

The way it reads to me is that if you bought a book, then wanted to sell it to someone when you were done reading it, the copyright owner of the book is telling you that they will sue you for doing so.

Perhaps the pro-Apple stance on this issue is because last time they let the incompetent build cheap sh*t and load OS on it, Apple almost went under. But at the time, Apple was spread thin making junk anyway. I think with their current ability to make money off of phones and media, that today's Apple could do better competing with other operating systems on systems they don't build. Let 'em have OS X, it will spread like wild fire. The more people at this point that have it the better. It is time for Apple to get huge and inconsiderate.

I guess two wrongs wouldn't make a right, but if Psystar argument is correct, then they shouldn't need to modify the code. This is the reason they are in court then, eh?

The way it reads to me is that if you bought a book, then wanted to sell it to someone when you were done reading it, the copyright owner of the book is telling you that they will sue you for doing so.

Perhaps the pro-Apple stance on this issue is because last time they let the incompetent build cheap sh*t and load OS on it, Apple almost went under. But at the time, Apple was spread thin making junk anyway. I think with their current ability to make money off of phones and media, that today's Apple could do better competing with other operating systems on systems they don't build. Let 'em have OS X, it will spread like wild fire. The more people at this point that have it the better. It is time for Apple to get huge and inconsiderate.

Under normal circumstances (such as the book example) you'd be able to resell it. However, I seem to recall that there is previous case law regarding EULAs where the reseller can be held liable if they are knowingly enabling end users to violate the agreement. If Psystar only sold the hardware and then told you to go by an OS yourself someplace else, they probably couldn't be held liable for this part (but still liable for modifying, etc). The person who installs the OS on the hardware is the one violating the EULA, but if Psystar sold you the boxed copy of OSX with their hardware they might be accountable as an accomplice (or whatever).

It's like with the original Napster. They weren't the ones making copyrighted songs available for download, but they were sued into oblivion because they were knowingly enabling others to do so. And there was another file sharing service (I forget the name) who lost a court case because their customer support was providing instructions to people on how to use the software to share music files with other people.

My worry is if Psystar wins, Apple will do EVERYTHING they can to lock down OS X. Obfusciate it, encrypt it, make running it on anything other than Macs completely impossible without hours of difficult hacking.

Right now, Apple looks the other way when it comes to the hobbyist hackintosh community. But if Psystar succeeds they may not be able to look the other way much longer. And for those of us who like to play with Hackintoshes (right alongside our real, genuine Macs in many cases!), it will be a sad day.

What on earth does that have to do with the case? Sure, you can buy OS X and then resell it. Fine. You can't alter the OS X code, and you can't install it on non Apple hardware. That's the issue. Nice red herring, but it's going to get thrown out just as quickly as the last one.

Which they know, yet they still continue with this garbage anyway. There has to be something else going on behind the scenes. Nobody is this stupid.

The way it reads to me is that if you bought a book, then wanted to sell it to someone when you were done reading it, the copyright owner of the book is telling you that they will sue you for doing so.

Your analogy only works if you bought OSX off the shelf, used it until you were finished with it, formatted your HDD, then sold OSX to someone else to install as they wish. That is perfectly legal.

A book analogy synonymous with what Psystar is doing is almost impossible to create since there are different laws that focus on different works. I guess I'll try:

You buy a book, you rip out some of the pages, glue in new ones, then resell the "new story" under the original author's name, without their consent, for a profit. That's illegal.

It's a victimless crime if you do it in your own home and keep it for personal use, it's another thing if you create a production line and start selling copies of an altered OS on overpriced, underpowered hardware that mimics Apple products.

On a sidenote, if Psystar or "their mysterious conspirator" have all this money, why don't they invest in R&D and create their own superior openPsyOS and sell it to run on any hardware?

I actually agree with the First Sale Doctrine argument by Psystar. However, the First Sale doctrine doesn't extent to modifying the software for anything other then personal use.

Doesn't the First Sale Doctrine only apply to the DVD copy of Mac OSX you purchase? You can sell that copy or use it as a coaster or whatever, but you can't make a copy of it unless you are authorized to do so by the copyright owner (Apple). The EULA is a license that allows you to make authorized copies of Mac OS X. For example, when you install it onto your Mac, you are making an authorized copy because it's in compliance with the EULA. The copyright owner (Apple) has authorized you to make that copy.

Apple has the right to dictate how and if you can make copies of their software. When you purchase the DVD, you purchase 1 copy of the software, and you enter into an agreement whereby Apple dictates the terms under which you can make additional copies (i.e. installing it). You may make other legal copies (such as archival). But you may not modify the copy you bought, or make additional copies outside the terms of the EULA. It would seem that Psystar is making an unauthorized copy when they put it on non-Apple hardware.

When you purchase a family-pack of OSX, Apple agrees to let you make multiple copies of the OS. They have the right to dictate how many copies you make, how you make them, and if you may distribute them.

I actually agree with the First Sale Doctrine argument by Psystar. However, the First Sale doctrine doesn't extent to modifying the software for anything other then personal use.

Exactly.

It's the same as saying one should be allowed to buy a book, change something trivial like the cover or the title and re-sell it as their own work for a bit more money. What's worse, is that they are (metaphorically) leaving the authors name on the changed cover associating them with the new work.

You can't do this with any other IP, I don't see why computer programs would be any different.

Edit: I didn't notice the same sentiments were already expressed above and even used a book metaphor. Creepy!

By many of the definitions people create for themselves here regarding the First Sale doctrine, third party software that modifies the OS would be considered a violation of Apple's copyright. That's ridiculous.

The main issue that Apple has is that the code modifications are only for allowing for interoperability. There are such interoperability exceptions to the DMCA.

You must remember that Apple will have to demonstrate exactly how it is being harmed. They are realizing the sale of the software, so their only harm is that they don't get a hardware sale out of it - but they don't necessarily get that anyway if someone buys it and installs on an existing Mac.

Anyone who argues that this case is cut-and-dry one way or another should be ignored. This is a very gray area of the law, especially in regards to copyrights. Psystar is not outside the realm of reason in their defense argument.

What on earth does that have to do with the case? Sure, you can buy OS X and then resell it. Fine. You can't alter the OS X code, and you can't install it on non Apple hardware. That's the issue. Nice red herring, but it's going to get thrown out just as quickly as the last one.

Which they know, yet they still continue with this garbage anyway. There has to be something else going on behind the scenes. Nobody is this stupid.

Agreed. Apple isn't claiming that psystar (or anyone else) can not sell the software to whoever they choose and AFAIK there isn't any language in the EULA that prevents this. Rather, there is language in the EULA that prevents the installation of the software on non Apple branded hardware, regardless of whether it is being resold. So once psystar installs OSX on their hardware, they've broken the EULA and what they do after that is pretty much moot (legally).

It is indeed hard to imagine that those guys have sold enough units to finance all these legal actions or that their entire legal team is willing to do all this work with any realistic expectation of winning and securing a decent payday. I don't think it's too tinfoilhattish to think that some third party(ies) is helping here.

I actually agree with the First Sale Doctrine argument by Psystar. However, the First Sale doctrine doesn't extent to modifying the software for anything other then personal use.

something Psystar is trying to brush under the rug.

Quote:

Originally Posted by gumbygo

Doesn't the First Sale Doctrine only apply to the DVD copy of Mac OSX you purchase?

Which is why Psystar is claiming that they bought a copy for every machine that they sold. and that DVD went in the box with the hardware.

but here's the catch. they had to modify the software to make it work on their hardware. which means, Apple is arguing, created a PsystarMacOS. PMOS is based off of Apple's software of which a good third is NOT open source. That portion is copyright protected and was violated by Psystar.

So if Psystar sold 100 machines with their hacked software, that's 100 counts of copyright theft. oops.

Quote:

Originally Posted by focher

You must remember that Apple will have to demonstrate exactly how it is being harmed. They are realizing the sale of the software, so their only harm is that they don't get a hardware sale out of it - but they don't necessarily get that anyway if someone buys it and installs on an existing Mac.

the courts have upheld that Apple has the legal right to try hardware and software together. no monopoly violation etc.

that is why Psystar tried to pull off a claim that Apple didn't properly register their copyright and thus can't sue etc. which was false but props for the cajones to be that stupid.

Your analogy only works if you bought OSX off the shelf, used it until you were finished with it, formatted your HDD, then sold OSX to someone else to install as they wish. That is perfectly legal.

A book analogy synonymous with what Psystar is doing is almost impossible to create since there are different laws that focus on different works. I guess I'll try:

You buy a book, you rip out some of the pages, glue in new ones, then resell the "new story" under the original author's name, without their consent, for a profit. That's illegal.

Fair enough.

Quote:

Originally Posted by silverpraxis

It's a victimless crime if you do it in your own home and keep it for personal use, it's another thing if you create a production line and start selling copies of an altered OS on overpriced, underpowered hardware that mimics Apple products.

Aren't they buying the OS one copy per machine? I didn't think they bought one DVD off the shelf and started mass producing copies for their machines from it. That would be dumb, and illegal on many levels without question.

Quote:

Originally Posted by silverpraxis

On a sidenote, if Psystar or "their mysterious conspirator" have all this money, why don't they invest in R&D and create their own superior openPsyOS and sell it to run on any hardware?

I think, in the same vain that Apple likes to make money off of hardware, this company (and many others I'm sure) wants to make money off of hardware without getting involved in operating systems of their own, as well. I just wish it went the other way, where Apple says "...sure, no problem, pay us $399 per seat and you can have it. Without our support for driver issues, of course "

That aside, I am for copyright changes in this country. Especially music and movies. I don't see the problem with a 40-50 year copyright on these things. That should pretty much cover the artist who created it. Also, the DMCA has tread all over fair use without limit. And the companies/artists have the potential right now to lock people up and destroy their lives for stealing a CD. Theft it may be when you download a movie, but copyright infringement likely not. If you walk into a store and steal a DVD, they (any movie studio) hardly have the right to track you down in jail and sue you for $250,000.

You must remember that Apple will have to demonstrate exactly how it is being harmed. They are realizing the sale of the software, so their only harm is that they don't get a hardware sale out of it ...

Well it hurts Apple, because Apple sells computers, not a stand-alone operating system. The retail box is basically just an upgrade for Macs that didn't ship with the new version. At only $129, Apple could easily prove that they do in fact consider it to be nothing more than an upgrade for existing Macs; all they'd have to do is compare it to the cost of a full retail version of Windows Vista Ultimate.

Quote:

Originally Posted by focher

... but they don't necessarily get that anyway if someone buys it and installs on an existing Mac.

They actually did get it already, with the original sale of the Mac. That hardware sale subsidizes the development of future OS updates and upgrades.